Item D3BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: February 26, 2013 Division: Growth Management
Bulk Item: Yes _ No X Staff Contact Person/Phone #: Christine Hurley 289-2517
AGENDA ITEM WORDING: Discussion regarding provisions of the County's Comprehensive Plan
and Land Development Code regarding the Coastal Barrier Resources System (CBRS) and potential
timelines and procedures for amendments due to new data and analysis.
ITEM BACKGROUND: The County has adopted Comprehensive Plan Policies and Land
Development Codes which both discourage and prohibit the extension of utilities to or through areas
designated as units of the CBRS.
On January 16, 2013, BOCC discussed a contract amendment for professional services with Keith and
Schnars (K&S), P.A., for additional services to evaluate the CBRS Comprehensive Plan policies to
determine whether they add any additional protection to land over and above Comprehensive Plan and
Land Development Code policies that govern the Tier System, including an analysis of the percentage
of land and number of parcels within the CBRS units by Tier Designation and whether infrastructure
extension to outlying neighborhoods or other platted areas increases a parcel's likelihood of being able
to obtain a favorable recommendation, based on Tier criteria to change a tier classification from Tier I
to Tier II, III, or III -A.
At the January 16, 2013 BOCC meeting, several speakers suggested that additional analysis be
conducted, beyond the tier designations policy review. The BOCC requested staff to review the public
input provided at the January meeting and requested staff to contact those who commented at the
BOCC meeting for a description of the additional analysis they suggest should be added to the scope of
services for the proposed K&S contract amendment.
The BOCC has several options to consider with respect to the provisions of the County's
Comprehensive Plan and Land Development Code regarding the Coastal Barrier Resources System
(CBRS) due to new findings and/or data and analysis. The following three options may be considered
(described in the attached memorandum):
Option A: If K&S data indicates the prohibition of extension of utilities to or through CBRS language
further protects the environment, the County staff would recommend no changes to the Comprehensive
Plan and Land Development Code.
Option B: If K&S data indicates the prohibition of extension of utilities to or through CBRS language
does not offer the environment any additional protection, the County staff could recommend
amendments to the Land Development Code Section 130-122 and Comprehensive Plan/
Option C: The BOCC may determine that the existing Land Development Code Section 130-122 is
inconsistent with the Comprehensive Plan (see Exhibit A for all related comp plan provisions). The
BOCC may make a legislative finding that a conflict exists and follow the process established by
Section 163.3194, F.S. The BOCC would direct County staff to initiate an amendment to the Land
Development Code Section 130-122 to cure or eliminate the prohibition regulation regarding extension
of public utilities to or through lands designated as a CBRS unit.
PREVIOUS RELEVANT BOCC ACTION: On January 16, 2013, BOCC discussed a contract
amendment with Keith and Schnars, P.A., for additional services to evaluate the CBRS policies.
Wei
CONTRACT/AGREEMENT CHANGES: N/A
STAFF RECOMMENDATIONS:
TOTAL COST: INDIRECT COST: BUDGETED: Yes No
DIFFERENTIAL OF LOCAL PREFERENCE:
COST TO COUNTY: SOURCE OF FUNDS:
REVENUE PRODUCING: Yes No AMOUNT PER MONTH Year
APPROVED BY: County Atty OMB/Purchasing Risk Management
DOCUMENTATION: Included X Not Required
DISPOSITION: AGENDA ITEM #
MONROE COUNTY PLANNING & ENVIRONMENTAL RESOURCEs DEPARTMENT
We strive to be caring, professional and fair
To: Monroe County Board of County Commissioners
From: Christine Hurley, AICP, Director of Growth Management
Bob Shillinger, County Attorney
Date: February 22, 2013
Subject: Discussion regarding provisions of the County's Comprehensive Plan and Land
Development Code regarding the Coastal Barrier Resources System (CBRS) and
potential timelines and procedures for amendments due to new findings and/or
data and analysis.
Meeting: February 26, 2013 Special BOCC Meeting
---------------------------------------------------------------------------------------------------------------------
BACKGROUND:
The County has adopted Comprehensive Plan Policies and Land Development Code which both
discourage and prohibit the extension of utilities to or through areas designated as units of the
CBRS.
For example:
Comprehensive Plan (see Exhibit A for all related comp plan provisions)
Policy 102.8.5
Monroe County shall [take] efforts to discourage the extension of facilities and
services provided by the Florida Keys Aqueduct Authority and private providers
of electricity and telephone service to CBRS units...
Land Development Code (see Exhibit B for all related code provisions)
Section 130-122. - Coastal barrier resources system overlay district.
(a) Purpose. The purpose of the coastal barrier resources system overlay district
is to implement the policies of the comprehensive plan by prohibiting the
extension and expansion of specific types of public utilities to or through lands
designated as a unit of the coastal barrier resources system.
On January 16, 2013, BOCC discussed a contract amendment for professional services with
Keith and Schnars (K&S), P.A., for additional services to evaluate the CBRS Comprehensive
Plan policies to determine whether they add any additional protection to land over and above
Comprehensive Plan and Land Development Code policies that govern the Tier System,
including an analysis of the percentage of land and number of parcels within the CBRS units by
Tier Designation and whether infrastructure extension to outlying neighborhoods or other platted
areas increases a parcel's likelihood of being able to obtain a favorable recommendation, based
on Tier criteria to change a tier classification from Tier I to Tier II, III, or III -A.
At the January 16, 2013 BOCC meeting, several speakers suggested that additional analysis be
conducted, beyond the tier designations policy review. The BOCC requested staff to review the
public input provided at the January meeting and requested staff to contact those who
commented at the BOCC meeting for a description of the additional analysis they suggest should
be added to the scope of services for the proposed K&S contract amendment.
The County received multiple public comments for the scope of services and K&S has provided
a price estimate for each potential additional scope of service item. This list of potential scope of
service items is included in a separate agenda item.
The BOCC has several options to consider with respect to the provisions of the County's
Comprehensive Plan and Land Development Code regarding the Coastal Barrier Resources
System (CBRS) due to new findings and/or data and analysis. The following three procedures for
amendments and potential timelines may be considered:
Option A
County receives data and analysis from K&S on CBRS and reviews results.
If K&S data indicates the prohibition of extension of utilities to or through CBRS
language further protects the environment, the County staff would recommend no
changes to the Comprehensive Plan and Land Development Code.
Steps include:
Procedure/Steps: Timeline
(Best Case Scenario)
NO ACTION N/A
Option B
County receives data and analysis from K&S on CBRS and reviews results.
If K&S data indicates the prohibition of extension of utilities to or through CBRS
language does not offer the environment any additional protection, the County staff could
recommend amendments to the Land Development Code and Comprehensive Plan, as
follows:
First, initiate amendments to Land Development Code Section 130-122 to remove
the prohibition regulation regarding extension of public utilities to or through
lands designated as a CBRS unit.
Steps include:
Procedure/Steps:
Timeline
(Best Case Scenario)
K&S completes CBRS data & analysis
March/April 2013
County staff reviews results of CBRS data &
April 2013
analysis
BOCC reviews results and directs staff to process
May 2013
amendments
Draft staff report and Land Development Code
June 2013
amendment (draft ordinance).
DRC
July 2013
PC
August 2013
BOCC adoption.
September 2013
Transmit to State Land Planning Agency for review
and issuance of a Final Order.
Final Order Published in Florida Administrative
October — December 2013
Weekly (21 day appealperiod).
NOTE: If an appeal is filed, the LDC does not go into effect, while that
administrative appeal is pending. An appeal would require a referral to a DOAH
hearing officer, who would issue an initial order attempting to schedule a hearing
between 30 and 70 days from the date of the initial order but the hearing officer and/or
the parties may seek a hearing date beyond the 70th day. Hearings can last more than
one day; those days are not necessarily consecutive to each other. The hearing officer
has 30 days from the conclusion of the hearing or receipt of the transcript, whichever
is later, to enter a recommended order. F.A.C. 28-106.216(1). The parties may file
exceptions to the recommended order within 15 days. A party may file responses to
the other party's exceptions within 10 days. The DEO secretary would then review
the recommended order and exceptions before entering a final order. Permits could
not be issued during this time period.
The final order could be appealed to the Ist or 3rd District Court of Appeal. A party
tiling an appeal could seek a stay of the issuance of the permits during this appeal.
Add 6 -12 months to timeframe for an Administrative Appeal
Add an additional 6-12 months s to timeframe for an Appeal to a District Court
of Appeal
If no appeal, Land Development Code becomes
January 2014
County may issue permits.
February 2014
2. Second, initiate amendments to Comprehensive Plan policy text (see Exhibit A for
all related comp plan provisions) regarding discouraging the extension of facilities
and services lands designated as a CBRS unit and other related policies on
evaluating infrastructure for the siting of any new or the significant expansion of
any existing public facility. These amendments would be incorporated into the
County's Evaluation and Appraisal Report (EAR) -based comprehensive plan
amendments and schedule for amendments.
Steps include:
(based upon anticipated EAR -based amendment/Comp Plan update schedule with K&S)
Procedure/Steps:
Timeline
(Best Case Scenario)
K&S completes CBRS data & analysis
March/April 2013
County staff reviews results of CBRS data &
April 2013
analysis
BOCC reviews results and directs staff to process
amendments
May 2013
Update EAR with K&S data indicating the
prohibition of extension of utilities to or through
CBRS language does not offer the environment any
June 2013
additional protection.
Draft staff report and Comprehensive Plan
July 2013
amendments (draft ordinance).
DRC
August 2013
PC (review)
September 2013
PC (recommendation on EAR -based amendments)
November 2013
BOCC transmittal hearing
February 2014
Transmit to State Land Planning Agency for review
and issuance of an Objections, Recommendations
March — May 2014
and Comments (ORC) Report. (60 days after
package found complete).
County receives & reviews ORC report — County
may need to address issues raised in the ORC report
by recommending revisions to proposed
amendments, providing additional data and analysis,
June 2014
etc. The County has 180 days to adopt the
amendments, adopt the amendments with changes or
not adopt the amendment.
BOCC adoption hearing
July 2014
Transmit to State Land Planning Agency for a
compliance review and issuance of a Notice Of
Intent to find the amendment "in -compliance" or
August — September 2014
"not -in -compliance" (45 days after package found
complete).
NOTE: if an appeal is filed, the CP does not go into effect, while that administrative
appeal is pending. An appeal would require a referral to a DOAH hearing officer,
who would issue an initial order attempting to schedule a hearing between 30 and 70
days from the date of the initial order but the hearing officer and/or the parties may
seek a hearing date beyond the 70th day. Hearings can last more than one day; those
days are not necessarily consecutive to each other. The hearing officer has 30 days
from the conclusion of the hearing or receipt of the transcript, whichever is later, to
enter a recommended order. F.A.C. 28-106.216(1). The parties may file exceptions to
the recommended order within 15 days. A party may file responses to the other
party's exceptions within 10 days. The DEO secretary would then review the
recommended order and exceptions before entering a final order. Permits could not be
issued during this time period.
The final order could be appealed to the 1st or 3rd District Court of Appeal. A party
filing an appeal could seek a stay of the issuance of the permits during this appeal.
Add 6 -12 months to timeframc for an Administrative Appeal
Add an additional 6-12 months s to timeframe for an ,Appeal to a District Court
of Appeal
If no appeal, the Comprehensive Plan amendment
becomes effective. October 2014
NOTE: If the County determines that the discouragement policies may be maintained
within the Comprehensive Plan, the County should consider interlocal agreements with
utilities as the County does not have the authority to govern utilities on established
rights -of -way.
Option C
The BOCC may determine that the existing Land Development Code Section 130-122 is
inconsistent with the Comprehensive Plan (see Exhibit A for all related comp plan
provisions). The BOCC may make a legislative finding that a conflict exists and follow
the process established by Section 163.3194, F.S. The BOCC would direct County staff
to initiate an amendment to the Land Development Code Section 130-122 to cure or
eliminate the prohibition regulation regarding extension of public utilities to or through
lands designated as a CBRS unit.
Steps include:
Procedure/Steps:
Timeline
(Best Case Scenario)
BOCC adopts a resolution finding the existing Land
Development Code Section 130-122 is inconsistent
March 2013
with the Comprehensive Plan. BOCC directs staff
to process amendments and BOCC adopts a
schedule for bringing the land development code
into conformity with the provisions of the
NOTE: Such an action by the BOCC would be a departure from the County's
historic position that Section 130-122 (and its predecessor) IS CONSISTENT
with the comprehensive plan. That position is reelected in:
a) May 13, 1998, Letter of Understanding (LOU) for Electrification of No Name
Key by Tim McGarry (former Monroe County Planning Director).
b) The Planning Department's position against the electrification of No Name Key
affirmation by the Planning Commission in Resolution No. P1.7-99, which was
affirmed by the Circuit Court in Taxpayers for the Electrification of No Name
Key, Inc., et. al. v. Monroe County (June 11, 2002 - Case No. 99-819-CA-19).
c) Planning Commission Resolution No. P44-2012, denying the administrative
appeal of the Newton building permit and upholding the administrative decision
by Townley Schwab, Senior Director of Planning, and Jerome Smith, Building
Official, to revoke building permit #121-1527 related to installation to electrical
service.
d) The County Commission's position on the consistency between the 130-122
and the comp plan as evidenced by the Commission direction to staff in the
Taxpayers for Electrification Suit, the 2011 and 2012 suits by the County against
Keys Energy, and others.
County may issue permits based upon Section
163.3194, F.S. April 2013
NOTE: The County may issue permits in the interim period pursuant to Section
163.3194(1)(b), F.S.
(1)(b) All land development regulations enacted or amended shall be consistent with
the adopted comprehensive plan, or element or portion thereof, and any land
development regulations existing at the time of adoption which are not consistent with
the adopted comprehensive plan, or element or portion thereof, shall be amended so as
to be consistent. If a local government allows an existing land development regulation
which is inconsistent with the most recently adopted comprehensive plan, or element
or portion thereof, to remain in effect, the local government shall adopt a schedule for
bringing the land development regulation into conformity with the provisions of the
most recently adopted comprehensive plan, or element or portion thereof. During the
interim period when the provisions of the most recently adopted comprehensive plan,
or element or portion thereof, and the land development regulations are inconsistent,
the provisions of the most recently adopted comprehensive plan, or element or portion
thereof, shall govern any action taken in regard to an application for a development
order.
NOTE: Permits issued may be appealed, which would stay the effectiveness of
the permit until all legal proceedings are resolved. Legal staff estimates
approximately 8-10 months (Approx. January 2014) for the appellate events.
Timeline of potential appellate events beginning with date a hypothetical permit
would be issued by the County: (As this permit will involve planning approval, the
timeline is for a Planning Commission appeal and not an appeal of a pure building
code decision).
• 30 days from the issuance of the permit to file a Notice of Appeal to the
Planning Commission. Simultaneously triggering an automatic stay of the
permit (LDC Section. 102-185(d).))
• 15 days for staff to get information to the Planning Commission.
• Unspecified period for the Planning Commission to hear the Appeal (at least 30
days),
Planning Commission hearing, order typically rendered at next Planning
Commission meeting in the following month.
• 30 days from rendition of Planning Commission decision for any appeal of that
decision to a DOAH Hearing Officer. Simultaneously triggering an automatic
stay of the permit (LDC Section 102-220).
• Within 90 days of the Notice to DOAH, staff shall get an official record to
DOM
• Appellant's Brief is due within 50 days of the Appeal Notice
• Appellee's Answer Brief is due within 20 days of the Appellant's Brief
• Appellant's Reply Brief is due within 10 days of the Answer Brief
• Within 60 days of the filing of the Briefs and the Record, DOM shall schedule
the case or oral argument
• Within 45 days of oral argument, DOM shall issue Order
Timeline does not contemplate any requests for extensions of time by any of the
parties.
DRC
May 2013
PC
June 2013
July 2013
BOCC adoption.
August 2013
Transmit to State Land Planning Agency for review
and issuance of a Final Order.
Final Order Published in Florida Administrative
September —November 2013
Weekly 21 day appeal period).
NOTE: If an appeal is filed, the LDC does not go into effect, while that
administrative appeal is pending. An appeal would require a referral to a DOM
hearing officer, who would issue an initial order attempting to schedule a hearing
between 30 and 70 days from the date of the initial order but the hearing officer and/or
the parties may seek a hearing date beyond the 70th day. Hearings can last more than
one day; those days are not necessarily consecutive to each other. The hearing officer
has 30 days from the conclusion of the hearing or receipt of the transcript, whichever
is later, to enter a recommended order. F.A.C. 28-106.216(1). The parties may file
exceptions to the recommended order within 15 days. A party may file responses to
the other party's exceptions within 10 days. The DEO secretary would then review
the recommended order and exceptions before entering a final order. Permits could
not be issued during this time period.
The final order could be appealed to the 1st or 3rd District Court of Appeal. A party
filing an appeal could seek a stay of the issuance of the permits during this appeal.
Add 6 -12 months to timeframe for an Administrative Appeal
Add an additional 6-12 months s to timeframe for an Appeal to a District Court
of Appeal
If no appeal, Land Development Code becomes I December 2013
effective.
Staff Recommendation:
Staff recommends the additional study be conducted to evaluate the CBRS Comprehensive Plan
policies to determine whether they add any additional protection to land over and above
Comprehensive Plan and Land Development Code policies that govern the Tier System. Based
upon the findings of this additional data and analysis, the staff recommends:
Option A - If K&S data indicates the prohibition of extension of utilities to or through CBRS
language further protects the environment, the County staff would recommend no changes to
the Comprehensive Plan and Land Development Code.
Option B - If K&S data indicates the prohibition of extension of utilities to or through CBRS
language does not offer the environment any additional protection, the County staff would
recommend amendments to the Land Development Code Section 130-122 and the
Comprehensive Plan.
NOTE: Option C would represent a change in the County's interpretation on the consistency of
Land Development Code Section 130-122 with the Comprehensive Plan provisions, a position
which the County has repeatedly asserted in litigation. A person opposed to the issuance of the
permits would be able use the County's prior pleadings and other written positions in his or her
permit challenges, which would make the defense of those challenges problematic.
8
EXHIBIT A
Adopted Comprehensive Plan Provisions:
Policy 101.12.4
Monroe County shall require that the following analyses be undertaken prior to finalizing plans
for the siting of any new or the significant expansion (greater than 25 percent) of any existing
public facility:
1. assessment of needs;
2. evaluation of alternative sites and design alternatives for the alternative sites; and,
3. assessment of direct and secondary impacts on surrounding land uses and natural
resources.
The assessment of impacts on surrounding land uses and natural resources will evaluate the
extent to which the proposed public facility involves public expenditures in the coastal high
hazard area and within environmentally sensitive areas, including disturbed salt marsh and
buttonwood wetlands, undisturbed beach berm areas, units of the Coastal Barrier Resources
System, undisturbed uplands (particularly high quality hammock and pinelands), habitats of
species considered to be threatened or endangered by the state and/or federal governments,
offshore islands, and designated Tier I areas.
Except for passive recreational facilities on publicly -owned land, no new public community or
utility facility other than water distribution and sewer collection lines or pump/vacuum/lift
stations shall be allowed within Tier I designated areas or Tier III Special Protection Area unless
it can be accomplished without clearing of hammock or pinelands. Exceptions to this
requirement may be made to protect the public health, safety, and welfare, if all the following
criteria are met:
1. No reasonable alternatives exist to the proposed location; and
2. The proposed location is approved by a supermajority of the Board of County
Commissioners.
The site of the Key Largo Wastewater Treatment Facility (located at mile marker 100.5) with an
allowed clearing of up to 4.2 acres shall not be subject to this policy.
Objective 102.8
Monroe County shall take actions to discourage private development in areas designated as units
of the Coastal Barrier Resources System.
Policy 102.8.1
Monroe County shall discourage developments which are proposed in units of Coastal Barrier
Resources System (CBRS).
Policy 102.8.2
Upon adoption of the Comprehensive Plan, Monroe County shall not create new access via new
bridges, new causeways, new paved roads or new commercial marinas to or on units of the
Coastal Barrier Resources System (CBRS).
Policy 102.8.3
By January 4, 1997, shoreline hardening structures, including seawalls, bulkheads, groins, rip -
rap, etc., shall not be permitted along shorelines of CBRS units.
Policy 102.8.4
By January 4, 1998, privately -owned undeveloped land located within the CBRS units shall be
considered for acquisition by Monroe County for conservation purposes through the Monroe
County Natural Heritage and Park Program.
Policy 102.8.5
Monroe County shall [take] efforts to discourage the extension of facilities and services provided
by the Florida Keys Aqueduct Authority and private providers of electricity and telephone
service to CBRS units. These efforts shall include providing each of the utility providers with:
1. a map of the areas of Monroe County which are included in CBRS units;
2. a copy of the Executive Summary in Report to Congress: Coastal Barrier Resources
System published by the U.S. Department of the Interior, Coastal Barriers Study Group,
which specifies restrictions to federally subsidized development in CBRS units;
3. Monroe County policies regarding local efforts to discourage both private and public
investment in CBRS units
Policy 103.2.4
Upon adoption of the Comprehensive Plan, Monroe County shall require that the following
analyses be undertaken prior to finalizing plans for the siting of any new public facilities or the
significant expansion (greater than 25 percent) of existing public facilities:
1. assessment of needs
2. evaluation of alternative sites and design alternatives for the selected sites; and
3. assessment of impacts on surrounding land uses and natural resources.
The assessment of impacts on surrounding land uses and natural resources will evaluate the
extent to which the proposed public facility involves public expenditures in the coastal high
hazard area and within environmentally sensitive areas, including disturbed salt marsh and
buttonwood wetlands, undisturbed beach/berm areas, units of the Coastal Barrier Resources
System, undisturbed uplands (particularly high quality hammocks and pinelands), habitats of
species considered to be threatened or endangered by the state and/or federal governments,
offshore islands, and Conservation Land Protection Areas.
Monroe County shall require that public facilities be developed on the least environmentally
sensitive lands and shall prohibit the location of public facilities on North Key Largo, unless no
feasible alternative exists and such facilities are required to protect the public health, safety, or
welfare.
Policy 103.2.10
Monroe County shall take immediate actions to discourage private development in areas
designated as units of the Coastal Barrier Resources System. (See Objective 102.8 and related
policies.)
GOAL 209
Monroe County shall discourage private land uses on its mainland, offshore islands and
undeveloped coastal barriers, and shall protect existing conservation lands from adverse impacts
associated with private land uses on adjoining lands.
Objective 209.3
Monroe County shall take immediate actions to discourage private development in areas
designated as units of the Coastal Barrier Resources System (CBRS).
Policy 215.2.3
No public expenditures shall be made for new or expanded facilities in areas designated as units
of the Coastal Barrier Resources System, saltmarsh and buttonwood wetlands, or offshore islands
not currently accessible by road, with the exception of expenditures for conservation and
parklands consistent with natural resource protection, and expenditures necessary for public
health and safety.
Policy 217.4.2
No public expenditures shall be made for new or expanded facilities in areas designated as units
of the Coastal Barrier Resources System, undisturbed saltmarsh and buttonwood wetlands, or
offshore islands not currently accessible by road, with the exception of expenditures for
conservation and parklands consistent with natural resource protection, and expenditures
necessary for public health and safety.
Policy 502.1.5
Monroe County shall support a proposal to amend the Coastal Barrier Resources System Map
adopted by the Coastal Barrier Improvement Act of 1990, to delete the improved port property
along the Safe Harbor entrance channel from the system unit, FL 57.
Policy 1301.7.12
By January 4, 1998, Monroe County shall initiate discussions with the FKAA and providers of
electricity and telephone service to assess the measures which could be taken to discourage or
prohibit extension of facilities and services to Coastal Barrier Resource Systems (CBRS) units.
Policy 1401.2.2
No public expenditures shall be made for new or expanded facilities in areas designated as units
of the Coastal Barrier Resources System, undisturbed saltmarsh and buttonwood wetlands, or
offshore islands not currently accessible by road, with the exception of expenditures for
conservation and parklands consistent with natural resource protection, and expenditures
necessary for public health and safety.
EXHIBIT B
Adopted Land Development Code Provisions:
Sec. 101-1. — Definitions
Coastal Barrier Resources System (CBRS) means those 15 (CBRS) units in the county
designated under the Federal Coastal Barrier Resources Act (CBRA) of 1982, comprising
undeveloped coastal barriers and all associated aquatic habitats including wetlands, marshes,
estuaries, inlets and near shore waters.
Sec. 130-122. - Coastal barrier resources system overlay district.
(a) Purpose. The purpose of the coastal barrier resources system overlay district is to implement
the policies of the comprehensive plan by prohibiting the extension and expansion of specific
types of public utilities to or through lands designated as a unit of the coastal barrier resources
system.
(b) Application. The coastal barrier resources system overlay district shall be overlaid on all
areas, except for Stock Island, within federally designated boundaries of a coastal barrier
resources system unit on current flood insurance rate maps approved by the Federal Emergency
Management Agency, which are hereby adopted by reference and declared part of this chapter.
Within this overlay district, the transmission and/or collection lines of the following types of
public utilities shall be prohibited from extension or expansion: central wastewater treatment
collection systems; potable water; electricity, and telephone and cable. This prohibition shall not
preclude the maintenance and upgrading of existing public utilities in place on the effective date
of the ordinance from which this section is derived and shall not apply to wastewater nutrient
reduction cluster systems.
(Code 1979, § 9.5-258; Ord. No. 43-2001, § 1)
The Solar Community of No Name Key
1934 No Name Drive
No Name Key, Florida 33043
Monroe County Board of County Commission Special Meeting
February 26, 2013 — Marathon, Florida
Agenda Item D-3
Dear Mayor Neugent and Fellow County Commissioners:
As described in Option C of Agenda Item D-3, Staff is including the option of making a
legislative finding that a conflict exists between the language in the Year 2010 Comprehensive
Land Use Plan and the Monroe County Code. It is further explained by Staff that such a
Finding could be use to initiate an amendment to the Code to eliminate Section 130-122 MCC,
the CBRS Overlay District ordinance. This would allow the immediate hook-up of the 22
houses to the commercially supplied power on No Name Key.
Option C is a poor idea for a multitude of reasons. First, this Board would be misapplying
Section i63.3194 FS, which exists as an interim solution where a newly adopted
Comprehensive Plan is more restrictive than the not -yet updated Land Development
Regulations, or visa versa.
More importantly, this Board would be making a Finding that is not supported by Facts.
A conflict between the language in the Year 2010 Comprehensive Plan and the MCC Section
130-122 clearly does NOT exist for the following reasons.
1.) In plain English "discourage" and "prohibit" are not opposing, they are gradations of the
negative. "Encourage" and "prohibit" or "discourage" and "allow" are opposing and therefore
would be in conflict.
2.) Comprehensive Land Use Plans are policy documents and are by definition more general
in nature than the Land Development Code, which implements the policies of the Plan and
are more specific in nature.
3.) The Year 2010 Comprehensive Land Use Plan includes Policy 1301.7.12, which includes
both the words "discourage" and "prohibit." This alone clearly demonstrates there is no
conflict between the Year 2010 Comprehensive Land Use Plan and the Monroe County Code.
Policy 1301.7.12 states:
"By January 4, 1998, Monroe County shall initiate discussions with the FKAA and
providers of electricity and telephone service to assess the measures, which could be
taken to diiscourhibit extension of facilities and services to Coastal
Barrier Resources Systems (CBRS) units." (Year 2010 Comprehensive Plan, Adopted
on January 4, 1996.)' Note: the highlighting was added for emphasis.
' In fact, Acting Planning Director Antonia Gerli took this action on January 31, 1996 in a letter to Mr. Dale Finigan listing
the CBRS policies. And, Monroe County Administrator James Roberts also took this action on August 2, 1996 when he
�3
4.) On December 19, 2001 the original CBRS Overlay District ordinance 041-2001 was
unanimously adopted by the BOCC.
After adoption it was sent to the Department of Community Affairs (DCA) for review. The
DCA found the original ordinance to be consistent with the Year 2010 Comprehensive Plan.
The DCA Final Order No.: DCA02-OR-032 includes Finding of Fact number 3 that states:
"Ord. 043-2001 is consistent with the County- 2010 Comprehensive Plan." (See
attached DCA Final Order No.: DCA02-OR-032.)
5.) On September 17, 2008, the BOCC (3-2) amended the CBRS Overlay District ordinance by
creating Ordinance No 020-20o8, which lifted the prohibition against the extension of a new
infrastructure to or through CBRS units.
On December 12, 2008 the DCA REJECTED the amended ordinance because lifting the
prohibition would made the ordinance inconsistent with the Year 2010 Comprehensive Land
Use Plan's policies to discourage both private and public investments in CBRS units for new
or expanded facilities.
The DCA Final Order No.: DCAo8-OR-352 includes Finding of Fact number 7 that states:
"Section 163.3202, Florida Statutes, however, requires that land development
regulations contain specific and detailed provisions necessary to implement the
adopted comprehensive plan which discourages the extension of facilities and utility
services to CBRS units and prohibits public expenditures for new or expanded facilities
areas designated as units of CBRS except for expenditures necessary for public health
and safety. While the County's Comprehensive Plan does not prohibit the extension of
ffiTITHR94fid services into CBRS units, Ordinance 020-2008 conflicts with the County's
policies discoura ijazlwLh nriv to nd. Sul li nv t_ nts .in CBU.MBiw for new or
expanded facilities:" (See attached DCA Final Order No.: DCAo8-OR-352•)
On February 18, 2009, the BOCC (5-o) RESCINDED Ordinance No. 020-20o8. This means
that the original wording of Ordinance 043-2001 remains in place and still stands as
consistent with the Year 2010 Comprehensive Land Use Plan.
In closing, please see the attached 02/25/2008 letter from Attorney Hartsell to Attorney-
Shillinger regarding Agenda Item D-3. The letter cites the applicable law that substantiates
that the above statements are in fact the legal reasons why Option 3 is not available to this
Commission.
Thank you for you interest in this matter.
wrote the Utility Board of the City of Key West stating that: "Also, you should know that the Monroe County
Comprehensive Plan as adopted has policies that are clearly not in support of such an extension of electric service. Please
see attachments. Therefore, I must suggest to you that the County does not support extension of electric service to No Name
Key."
Sincerely,
Alicia Roemmele-Putney, President
The Solar Community of No Name Key
872-8888
Attachments:
-Department of Community Affairs Final Order No.: DCA02-OR-03, 6 pages.
-Department of Community Affairs Final Order No.: DCAo8-OR-352, 7 pages.
-Letter to Attorney Shillinger from Attorney Hartsell dated February 24, 2013 regarding
Agenda Item's D-3 "Option C", 2 pages.
DCA Final Order No.:
DCA02-OR-032
STATE OF FLORIDA
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DEPARTMENT OF COMMUNITY AFFAIRS
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In re: MONROE COUNTY LAND DEVELOPMENT:
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REGULATIONS ADOPTED BY
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MONROE COUNTY ORDINANCE NO.043-2001
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FINAL ORDER
The Department of Community Affairs (the "Department") hereby issues its Final Order,
pursuant to §§ 380.05(6) and (11), Fla. Stat., and § 380.0552(9), Fla. Stat. (2001), approving
Monroe County Ordinance No. 043-2001 as set forth below.
:`.2 9*0
l . The Florida Keys Area is a statutorily designated area of critical state concern, and
Monroe County is a local government within the Florida Keys Area.
2. On January 28, 2002, the Department received for review Monroe County Ordinance
No. 043-2001 which was adopted by the Monroe County Board of County Commissioners on
December 19, 2001 ( "Ord. 043-2001 "). Ord. 043-2001 establishes a Land Use Overlay District
that will prohibit the extension or expansion of public utilities to units of the Coastal Barrier
Resources System.
,4 OP643+2001 is cottstmot with the County's 2010 Conimehensive Plan,
CONCLUSIONS OF LAW
4. The Department is required to approve or reject land development regulations that are
enacted, amended or rescinded by any local government in the Florida Keys Area of Critical
State Concern. §§ 380.05(6) and (11), Fla. Stat., and § 380.0552(9), Fla. Stat. (2001).
5. Monroe County is a local government within the Florida Keys Area of Critical State
Concern. § 380.0552, Fla. Slat. (2001) and Rule 28-29.002 (superseding Chapter 27F-8), Fla.
Admin. Code.
6. "Land development regulations" include local zoning, subdivision, building and other
reiml; tinny rnnirnlline the develnnmeni of l:mO F 3F0.031(8). Flo..Stnr (2001). The reenlitionF
adopted by Ord. 043-2001 are land development regulations.
7, All land development regulations enacted, amended or rescinded within an area of
critical state concern must be consistent with the Principles for Guiding Development (the
"Principles"). § 380.0552(7), Fla. Star.; see Rathkamp v. Department of Community Affairs, 21
F.A.L.R. 1902 (Dec. 4, 1998), aff'd, 740 So. 2d 1209 (Fla. 3d DCA 1999). The Principles are
construed as a whole and no specific provision is construed or applied in isolation from the other
provisions. § 380.0552(7), Fla. Slat. (2001).
8. Ord. 043-2001 promotes and furthers the following Principles in § 380.0552(7):
(a) To strengthen local government capabilities for managing land use and
development so that local government is able to achieve these objectives without
the continuation of the area of critical state concern designation.
(b) To protect shoreline and marine resources including
mangroves, coral reef formations, seagrass beds, wetlands, fish and
wildlife, and their habitat.
(c) To protect upland resources, tropical biological communities,
freshwater wetlands, native tropical vegetation, (for example,
hardwood hammocks and pinelands), dune ridges and beaches,
wildlife, and their habitat.
(d) To ensure the maximum well-being of the Florida Keys and its
citizens through sound economic development.
2
(1) To protect the public health, safety, and welfare of the citizens
of the Florida Keys and maintain the Florida Keys as a unique
Florida resource.
9. Ord. 043-2001 is not inconsistent with the remaining Principles. Ord. 043-2001 is
consistent with the Principles for Guiding Development as a whole.
WBEREFORE, IT'S' (?RDTRL-D that Orel. nn?.Innl it frnmd 1n he consistent with thc
Principles for Guiding Development of the Florida Keys Area of Critical State Concern, and is
hereby APPROVED.
This Order becomes effective 21 days after publication in the Florida Administrative
Weekly unless a petition is filed as described below.
DONE AND ORDERED in Tallahassee,
SONNY TIMMERMAN, DIRECTOR
Division of Community Planning
Department of Community Affairs
2555 Shumard Oak Boulevard
Tallahassee, Florida 32399-2100
NOTICE OF ADMINISTRATIVE RIGHTS
ANY PERSON WHOSE SUBSTANTIAL INTERESTS ARE AFFECTED BY THIS
ORDER HAS THE OPPORTUNITY FOR AN ADMINISTRATIVE PROCEEDING
PURSUANT TO SECTION 120.569, FLORIDA STATUTES, REGARDING THE ENCY'S
ACTION. DEPENDING UPON WHETHER YOU ALLEGE ANY DISPUTED ISSUE OF
MATERIAL FACT IN YOUR PETITION REQUESTING AN ADMINISTRATIVE
PROCEEDING, YOU ARE ENTITLED TO EITHER AN INFORMAL PROCEEDING OR A
FORMAL HEARING.
IF YOUR PETITION FOR HEARING DOES NOT ALLEGE ANY DISPUTED ISSUE
OF MATERIAL FACT CONTAINED IN THE DEPARTMENT'S ACTION, THEN THE
ADMINISTRATIVE PROCEEDING WILL BE AN INFORMAL ONE, CONDUCTED
PURSUANT TO SECTIONS 120.569 AND 120.57(2) FLORIDA STATUTES, AND
3
CHAPTER 28-106, PARTS I AND III, FLORIDA ADMINISTRATIVE CODE. IN AN
INFORMAL ADMINISTRATIVE PROCEEDING, YOU MAY BE REPRESENTED BY
COUNSEL OR BY A QUALIFIED REPRESENTATIVE, AND YOU MAY PRESENT
WRITTEN OR ORAL EVIDENCE IN OPPOSITION TO THE DEPARTMENT'S ACTION OR
REFUSAL TO ACT; OR YOU MAY EXERCISE THE OPTION TO PRESENT A WRITTEN
STATEMENT CHALLENGING THE GROUNDS UPON WHICH THE DEPARTMENT HAS
CHOSEN TO JUSTIFY ITS ACTION OR INACTION.
Tr VnT.1 DISP)1TE ANTNf J5ST.TF nr MA.TER1Al. FACT STATED IT' THE ACF?\T(}'
ACTION, THEN YOU MAY FILE A PETITION REQUESTING A FORMAL
ADMINISTRATIVE HEARING BEFORE AN ADMINISTRATIVE LAW JUDGE OF THE
DIVISION OF ADMINISTRATIVE HEARINGS, PURSUANT TO SECTIONS 120.569 AND
120.57(I), FLORIDA STATUTES, AND CHAPTER 28-106, PARTS I AND II, FLORIDA
ADMINISTRATIVE CODE. AT A FORMAL ADMINISTRATIVE HEARING, YOU MAY
BE REPRESENTED BY COUNSEL OR OTHER QUALIFIED REPRESENTATIVE, AND
YOU WILL HAVE THE OPPORTUNITY TO PRESENT EVIDENCE AND ARGUMENT ON
ALL THE ISSUES INVOLVED, TO CONDUCT CROSS-EXAMINATION AND SUBMIT
REBUTTAL EVIDENCE, TO SUBMIT PROPOSED FINDINGS OF FACT AND ORDERS,
AND TO FILE EXCEPTIONS TO ANY RECOMMENDED ORDER.
IF YOU DESIRE EITHER AN INFORMAL PROCEEDING OR A FORMAL
HEARING, YOU MUST FILE WITH THE AGENCY CLERK OF THE DEPARTMENT OF
COMMUNITY AFFAIRS A WRITTEN PLEADING ENTITLED, "PETITION FOR
ADMINISTRATIVE PROCEEDINGS" WITHIN 21 CALENDAR DAYS OF PUBLICATION
OF THIS NOTICE. A PETITION IS FILED WHEN IT IS RECEIVED BY THE AGENCY
CLERK, IN THE DEPARTMENT'S OFFICE OF GENERAL COUNSEL, 2555 SHUMARD
OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100.
THE PETITION MUST MEET THE FILING REQUIREMENTS IN RULE 28-
106.104(2), FLORIDA ADMINISTRATIVE CODE. IF AN INFORMAL PROCEEDING 1S
REQUESTED, THEN THE PETITION SHALL BE SUBMITTED IN ACCORDANCE WITH
RULE 28-106.301, FLORIDA ADMINISTRATIVE CODE. IF A FORMAL HEARING IS
REQUESTED, THEN THE PETITION SHALL BE SUBMITTED IN ACCORDANCE WITH
RULE 28-106.20](2), FLORIDA ADMINISTRATIVE CODE.
A PERSON WHO HAS FILED A PETITION MAY REQUEST MEDIATION. A
REQUEST FOR MEDIATION MUST INCLUDE THE INFORMATION REQUIRED BY
RULE 28-106.402, FLORIDA ADMINISTRATIVE CODE. CHOOSING MEDIATION DOES
NOT AFFECT THE RIGHT TO AN ADMINISTRATIVE HEARING.
YOU WAIVE THE RIGHT TO AN INFORMAL ADMINISTRATIVE
PROCEEDING OR A FORMAL HEARING IF YOU DO NOT FILE A PETITION WITH
THE AGENCY CLERK WITHIN 21 DAYS OF PUBLICATION OF THIS FINAL
ORDER.
4
CERTIFICATE OF FTLTNG AND SERVICE
I HEREBY CERTIFY that the original of the foregoing Final Order has been filed with
the undersigned designated Agency Clerk, and that true d correct copies have been furnished to
the persons listed below by the method indicated this PP day of February, 2002.
Panla Ford. Agency C'ler}-
By U.S. Mail: �•
Honorable George Neugent
Mayor of Monroe County
500 Whitehead Street
Key West, Florida 33040
Danny L. Kolhage
Clerk to the Board of County Commissioners
500 Whitehead Street
Key West, Florida 33040
Timothy J. McGarry, AICP
Director, Growth Management Division
2798 Overseas Highway, Suite 400
Marathon, Florida 33050
By Hand Delivery or Interaeency Mail:
Michael McDaniel, Growth Management Administrator, DCA Tallahassee
Rebecca Jetton, DCA Florida Keys Field Office
Richard A. Lotspeich, Assistant General Counsel, DCA Tallahassee
BRANCH OFFICE
MARATHON SUB COURTHOUSE
3117 OVERSEAS HIGHWAY
MARATHON, FLORIDA 33050
TEL. (305) 289-6027
FAX (305) 289.1745
CLERK OF THE CIRCUIT COURT
MONROE COUNTY
MONROE COUNTY COURTHOUSE
500 WHITEHEAD STREET
KEY. WEST, FLORIDA 33040
TEL. (305) 292-3550
FAX (305) 295-3663
January 15, 2002
Department of State, Bureau of Administrative Code
The Collins Building
107 West Gaines Street, Suite L43
Tallahassee, Florida 32399-0250
Dear Ms. Cloud:
BRANCH OFFICE
PLANTATION KEY
GOVERNMENT CENTER
88820OVERSEAS HIGHWAY
PLANTATION KEY, FLORIDA 33070
TEL (305) 852-7145
FAX (305) 852-7146
Please be advised that at a Regular Meeting in formal session on December 19, 2001, the
Board of County Commissioners of Monroe County adopted Ordinance No. 043-2001 amending
the Monroe County Land Development Regulations by adding Section 9.5-258 to establish a new
Land Use Overlay District that will prohibit the extension or expansion of public utilities to units
of the Coastal Barrier Resources System; Providing for the severability; Providing for the repeal
of all Ordinances inconsistent herewith; Providing for incorporation into the Monroe County
Code; and providing an effective date.
Attached hereto is a certified copy of the subject Ordinance for your handling. Should
you have any questions concerning the above, please do not hesitate to contact this office.
Very truly yours,
Danny L. Kolhage
Clerk of Court and ex-officio Clerk to the
Board of County Commissioners
By DoJljc &Mo
Isabel C. DeSantis, Deputy Clerk
Cc: Municipal Code Corporation
County Commission
Growth Management
/File
DCA Final Order No.: DCA08-OR-352
STATE OF FLORIDA
DEPARTMENT OF COMMUNITY AFFAIRS
In re: MONROE COUNTY LAND
DEVELOPMENT REGULATIONS
ADOPTED BY MONROE COUNTY
ORDINANCE NO.020-2008
FINAL ORDER
The Department of Community Affairs (the "Department") hereby issues its Final Order.
pursuant to §§ 380.05(6), Fla. Stat., and § 380.0552(9). Fla. Stat. (2007), rejecting a land
development regulation adopted by a local government within the Florida Keys Area of Critical
State Concern as set forth below.
FINDINGS OF FACT
The Florida Keys Area is a statutorily designated area of critical state concern,
and Monroe County is a local government within the Florida Keys Area.
2. On October 17, 2008, the Department received for review Monroe County
(County) Ordinance No. 020-2008 ("Ord. 020-2008"), adopted by the County on September 17,
2008.
3. The purpose of the Ordinance is to amend Section 9.5-258 of the Monroe County
Code to allow the provision of wastewater service and support utilities to developed properties
located within the Coastal Barrier Resources System (CBRS) Overlay.
4. The Coastal Barrier Resources Act (CBRA) of 1982 established the CBRS to
restrict the federally subsidized development of coastal barrier areas. See 16 U.S.C. 3504(a)(1).
5. On December 18, 2001, the Monroe County Board of County Commissioners
adopted Ordinance No. 043-2001, creating Section 9.5-258 of the Monroe County Code which
established the CBRS Overlay District, the purpose of which is to implement the policies of the
Comprehensive Plan by prohibiting the extension and expansion of specific types of public
I
DCA Final Order No.: DCA08-OR-352
utilities to or through lands designated as a unit of the CBRS.
6. On June 18, 2008, the Monroe County Board of County Commissioners directed
the Growth Management Staff to amend the Comprehensive Plan and Land Development
Regulations to reword the prohibition on utilities such that the focus and priority be placed on
wastewater first and any discussion of electric or any other utility, other than those required to
efficiently support a central wastewater collection system, be deferred until the wastewater goal
is accomplished.
Section 163.3202, Florida Statutes, however, requires that land development
regulations contain specific and detailed provisions necessary to implement the adopted
comprehensive plan which discourages the extension of facilities and utility services to CBRS
units and prohibits public expenditures for new or expanded facilities in areas designated as units
of the CBRS except for expenditures necessary for public health and safety. While the County's
Comprehensive Purr does not prohibit the extension of facilities and service into CBRS units,
Ordinance 020-2008 conflicts with the County's policies-di:scoumging both private and public
investments in CBRS units for new or expanded facilities.
A comprehensive plan amendment is necessary to resolve this conflict and clarify
that the extension of facilities and services to specific areas in CBRS units, including No Name
Key, designated as Hot Spots for central sewer may be necessary for water quality improvement
as well as for financial feasibility and economies of scale in construction of regional wastewater
plants.
The provision of central wastewater treatment and collection facilities through or
to CBRS areas to developed properties may be one option to satisfy the treatment standard
requirements of Section 6 of Chapter 99-395 Laws of Florida. However, sufficient data and
analysis has not been provided to address the capital cost allocation issues associated with the
provision of central wastewater treatment and collection systems, and where needed, the cost for
the provision of electrical service to the CBRS units
DCA Final Order No.: DCA08-OR-352
10. Monroe County staff has indicated that the County will be moving forward with a
Comprehensive Plan amendment to address any conflicts with the Comprehensive Plan in the
County's first amendment cycle in 2009. Although the Department is encouraged by the
County's efforts to provide central sewer to No Name Key, since the current wastewater
construction schedule does not anticipate completion of the new facility for several years, the
County has an opportunity to provide an analysis of the magnitude of the additional public
facility costs.
11. If the intent of the County is to provide wastewater only to No Name Key within
the CBRS units, the Department would recommend the County first adopt any necessary
Comprehensive Plan amendments and subsequently revise Ordinance 020-2008 to target its
application to No Name Key.
CONCLUSIONS OF LAW
12. The Department is required to approve or reject land development regulations that
are enacted, amended, or rescinded by any local government in the Florida Keys Area of Critical
State Concern. § 380.05(6), Fla. Slat., and § 380.0552(9), Fla. Stat. (2007).
13. Monroe County is a local government within the Florida Keys Area of Critical
State Concern. § 380.0552, Fla. Stat. (2007) and Rule 28-29.002 (superseding Chapter 27F-8),
Fla. Admin. Corte.
14. "Land development regulations" include local zoning, subdivision, building, and
other regulations controlling the development of land. § 380.031(8), Fla. Stat. (2007). The
regulations adopted by Ord. 020-2008 are land development regulations.
15. All land development regulations enacted, amended, or rescinded within an area
of critical state concert must be consistent with the Principles for Guiding Development (the
"Principles") as set forth in § 380.0552(7), Fla. Stat. See Rathkamp v. Department of
Communitt, Affairs. 21 F.A.L.R. 1902 (Dec. 4, 1998), gff'd, 740 So. 2d 1209 (Fla. 3d DCA
1999). The Principles are construed as a whole and no specific provision is construed or applied
3
DCA Final Order No.: DCA08-OR-352
in isolation from the other provisions.
16. Ord. 020-2008 fails to promote and further the following Principles:
(a) To strengthen local government capabilities for managing land
use and development so that local government is able to
achieve these objectives without the continuation of the area of
critical state concern designation.
(b) To protect shoreline and marine resources, including
mangroves, coral reef formations, seagrass beds, wetlands, fish
and wildlife, and their habitat.
(h) To protect the value, efficiency, cost-effectiveness, and
amortized life of existing and proposed major public
investments, including:
1. The Florida Keys Aqueduct and water supply facilities;
2. Sewage collection and disposal facilities;
3. Solid waste collection and disposal facilities;
4. Key West Naval Air Station and other military
facilities;
5. Transportation facilities;
6. Federal parks, wildlife refuges, and marine sanctuaries;
7. State parks, recreation facilities, aquatic preserves, and
other publicly owned properties;
8. City electric service and the Florida Keys Electric Co-
op; and
9. Other utilities, as appropriate.
(i) To limit the adverse impacts of public investments on the
environmental resources of the Florida Keys.
17. Ord. 020-2008 is inconsistent with the Principles for Guiding Development as a
whole.
WHEREFORE, IT IS ORDERED that Ord. 020-2008 is found to be inconsistent with the
Principles for Guiding Development of the Florida Keys Area of Critical State Concern, and is
hereby REJECTED.
This Order becomes effective 21 days after publication in the Florida Administrative
Weekly unless a petition is filed as described below.
DCA Final Order No.: DCA08-OR-352
DONE AND ORDERED in Tallahassee, Florida.
— 0 0.4 't�
C S GAUTHIER, AICP
Director, Division of Community Planning
Department of Community Affairs
2555 Shumard Oak Boulevard
Tallahassee, Florida 32399-2100
NOTICE OF ADMINISTRATIVE RIGHTS
ANY PERSON WHOSE SUBSTANTIAL INTERESTS ARE AFFECTED BY THIS
ORDER HAS THE OPPORTUNITY FOR AN ADMINISTRATIVE PROCEEDING ACTION.
DEPENDING UPON WHETHER YOU ALLEGE ANY DISPUTED ISSUE OF MATERIAL
FACT IN YOUR PETITION REQUESTING AN ADMINISTRATIVE PROCEEDING, YOU
ARE ENTITLED TO EITHER AN INFORMAL PROCEEDING OR A FORMAL HEARING.
IF YOUR PETITION FOR HEARING DOES NOT ALLEGE ANY DISPUTED ISSUE
OF MATERIAL FACT CONTAINED IN THE DEPARTMENT'S ACTION, THEN THE
ADMINISTRATIVE PROCEEDING WILL BE AN INFORMAL ONE, CONDUCTED
PURSUANT TO SECTIONS 120.569 AND 120.57(2) FLORIDA STATUTES, AND
CHAPTER 28-106, PARTS I AND III, FLORIDA ADMINISTRATIVE CODE. IN AN
INFORMAL ADMINISTRATIVE PROCEEDING, YOU MAY BE REPRESENTED BY
COUNSEL OR BY A QUALIFIED REPRESENTATIVE, AND YOU MAY PRESENT
WRITTEN OR ORAL EVIDENCE IN OPPOSITION TO THE DEPARTMENT'S ACTION OR
REFUSAL TO ACT; OR YOU MAY EXERCISE THE OPTION TO PRESENT A WRITTEN
STATEMENT CHALLENGING THE GROUNDS UPON WHICH THE DEPARTMENT HAS
CHOSEN TO JUSTIFY ITS ACTION OR INACTION.
IF YOU DISPUTE ANY ISSUE OF MATERIAL FACT STATED IN THE AGENCY
ACTION, THEN YOU MAY FILE A PETITION REQUESTING A FORMAL
ADMINISTRATIVE HEARING BEFORE AN ADMINISTRATIVE LAW JUDGE OF THE
DIVISION OF ADMINISTRATIVE HEARINGS, PURSUANT TO SECTIONS 120.569 AND
120.57(1), FLORIDA STATUTES, AND CHAPTER 28-106, PARTS I AND II, FLORIDA
ADMINISTRATIVE CODE. AT A FORMAL ADMINISTRATIVE HEARING, YOU MAY
BE REPRESENTED BY COUNSEL OR OTHER QUALIFIED REPRESENTATIVE, AND
YOU WILL HAVE THE OPPORTUNITY TO PRESENT EVIDENCE AND ARGUMENT ON
ALL THE ISSUES INVOLVED, TO CONDUCT CROSS-EXAMINATION AND SUBMIT
REBUTTAL EVIDENCE, TO SUBMIT PROPOSED FINDINGS OF FACT AND ORDERS,
AND TO FILE EXCEPTIONS TO ANY RECOMMENDED ORDER.
DCA Final Order No.: DCA08-OR-352
IF YOU DESIRE EITHER AN INFORMAL PROCEEDING OR A FORMAL
HEARING, YOU MUST FILE WITH THE AGENCY CLERK OF THE DEPARTMENT OF
COMMUNITY AFFAIRS A WRITTEN PLEADING ENTITLED, "PETITION FOR
ADMINISTRATIVE PROCEEDINGS" WITHIN 21 CALENDAR DAYS OF PUBLICATION
OF THIS NOTICE. A PETITION IS FILED WHEN IT IS RECEIVED BY THE AGENCY
CLERK, IN THE DEPARTMENT'S OFFICE OF GENERAL COUNSEL, 2555 SHUMARD
OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100.
THE PETITION MUST MEET THE FILING REQUIREMENTS IN RULE 28-
106.104(2), FLORIDA ADMINISTRATIVE CODE. IF AN INFORMAL PROCEEDING IS
REQUESTED, THEN THE PETITION SHALL BE SUBMITTED IN ACCORDANCE WITH
RULE 28-106.301, FLORIDA ADMINISTRATIVE CODE. IF A FORMAL HEARING IS
REQUESTED, THEN THE PETITION SHALL BE SUBMITTED IN ACCORDANCE WITH
RULE 28-106.201(2), FLORIDA ADMINISTRATIVE CODE.
A PERSON WHO HAS FILED A PETITION MAY REQUEST MEDIATION. A
REQUEST FOR MEDIATION MUST INCLUDE THE INFORMATION REQUIRED BY
RULE 28-106.402, FLORIDA ADMINISTRATIVE CODE. CHOOSING MEDIATION DOES
NOT AFFECT THE RIGHT TO AN ADMINISTRATIVE HEARING.
YOU WAIVE THE RIGHT TO AN INFORMAL ADMINISTRATIVE
PROCEEDING OR A FORMAL HEARING IF YOU DO NOT FILE A PETITION WITH
THE AGENCY CLERK WITHIN 21 DAYS OF PUBLICATION OF THIS FINAL
ORDER.
CERTIFICATE OF FILING AND SERVICE
I HEREBY CERTIFY that the original of the foregoing Final Order has been filed with
the undersigned designated Agency Clerk, and that true and ct copies have been furnished
to the persons listed below by the method indicated this day of December, 2008.
aula Ford, Agenc�er
By U.S. Mail:
Honorable Mario DiGennaro
Mayor of Monroe County
Florida Keys Marathon Airport
9400 Overseas Highway, Suite 210
Key West, Florida 33050
DCA Final Order No.: DCA08-OR-352
Danny L. Kolhage
Clerk to the Board of County Commissioners
500 Whitehead Street
Key West, Florida 33040
Andrew Trivette
Growth Management Director
2798 Overseas Highway, Suite 400
Marathon, Florida 33050
By Hand Delivery or Interagency Mail:
Craig Diamond, Bureau of State Planning, DCA Tallahassee
Rebecca Jetton, ACSC Administrator, DCA Tallahassee
Richard E. Shine, Assistant General Counsel, DCA Tallahassee
0.1
ROBERT N. HARTSELL, P.A.
1600 South Federal Highway, Suite 921
Pompano Beach, Florida 33062
Main (954)-778-1052 - Fax (954) 941-6462
Roberttafflartsell-l.aw.com
February 25, 2012
Mr. Bob Shillinger
County Attorney
Monroe County Attorneys Office
1111 12«` Street, Suite 408
Key West, Florida 33040
VIA ELECTRONIC MAIL TO: Shillinger-Bob@MonroeCounty-FL.Gov
RE: February, 26, 2013 agenda item C-3 discussion regarding provisions of the County's
Comprehensive Plan and Land Development Code regarding the Coastal Barrier Resource
System (CBRS) and potential timelines and procedures for amendments to new data and
analysis.
Dear Mr. Shillinger,
On behalf of my client Alicia Roemmele-Putney, this letter shall serve as a response to
what is proposed as "Option C" of the above reference agenda item. "Option C" is proposed as
an option that the County Commission may consider tomorrow when discussing the future of the
existing provisions in the comprehensive plan and land development regulations. "Option C" is
based on a gross misunderstanding of fundamental land use law and should be removed.
"Option C" states:
"The BOCC may determine that the existing Land Development Code
Section 130-122 is inconsistent with the Comprehensive Plan (see Exhibit
A for all related comp plan provisions). The BOCC may make a
legislative finding that a conflict exists and follow the process established
by Section 163.3194, F.S. The BOCC would direct County staff to initiate
an amendment to the Land Development Code Section 130-122 to cure or
eliminate the prohibition regulation regarding extension of public utilities
to or through lands designated as a CBRS unit."
First, the County Commission does not interpret the consistency of Land Development
Regulations with the Comprehensive Plan in a legislative capacity. It is clearly established black
letter law that the County Commission functions in its quasi-judicial capacity of interpreting
policy application as opposed to policy setting. Board of County Commissioners of Brevard
Countv v. Snvder, 627 So. 2d 469, 474-475 (Fla. 1993). As you are aware, this is not a
distinction without a difference in the context of land use law. Beyond the procedural and due
process issues associated with quasi-judicial hearings, the standard of review to be applied by the
County Commission is "competent substantial evidence" and "strict scrutiny" compliance with
the plan. Lee County v. Sunbelt Euuities, lI, Ltd _Pantnershin, 619 So. 2d 996 (Fla. 2d DCA
1993). This is a rather large hurdle for the County, understanding that the Department of
Fconomic Opportunity (formerly the Department of Community Affairs) not only found Section
130-122 M.C.C. consistent with the Comprehensive Plan, but also it ordered the County to
rescind an attempt at revision of that very same language of the code. (Attachment A and B).
Second, and most importantly, the mere fact that a Land Development Regulation may
limit the possible development allowed by the Comprehensive Plan does not render the
Regulation inconsistent Snyder, 627 So. 2d 469, 475 (Fla. 1993). In Snyder, the Florida
Supreme Court concluded that "the present use of land may, by zoning ordinance, continue to be
more limited than the future use contemplated by the Comprehensive Plan." Id_ Moreover, the
Snyder court held:
"Further, we cannot accept the proposition that once the landowner
demonstrates that the proposed use is consistent with the comprehensive
plan, he is presumptively entitled to this use unless dhe opposing
governmental agency proves by clear and convincing evidence that
specifically stated public necessity requires a more restricted use. We do
not believe that a property owner is necessarily entitled to relief by
proving consistency when the board action is also consistent wrath the plan.
Bd, of County Comm'Rs v. Snyder, 627 So. 2d 469, 475 (Fla. 1993).
Lastly, Section 163.3194, Fla. Stat. is being read out of context in "Option C." Section
163.3194, Fla. Stat. provides for changes to the Land Development Code when subsequent
comprehensive plan amendments prohibit or restrict the former available land use.
While my client requests that the Commission remain resolute by upholding and
enforcing its current Comprehensive Plan and Land Use Regulations, if the County believes
Monroe County Code 130-122 should allow for approval of utilities to and through its most
environmentally sensitive lands and endangered Key deer habitat, it can seek to amend the Plan
and Land Development Regulations through the proper course, involving the public. A local
government is required to enforce its Comprehensive Plan and I..and Development Regulations,
unless and until it is formally amended. Baker v. Metropolitan Dade County, 774 So. 2d 14 (Fla_
3d DCA 2000).
Best wishes for tomorrov
itovert N. mamwu, rsq.
Robert N. Hartsell, P.A.
cc: Derek Howard, Esq.
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